Sunday, July 7, 2013

The State: Always the Accuser, Never the Defendant

Jessica Nelson and Philemon Ellis were killed instantly when a car driven by Eddy Bustos blind-sided them at an intersection in Ogden, Utah. Bustos, who was trying to elude a police officer, plowed his vehicle into Nelson’s car at nearly 80 miles per hour. 

Bustos would be sent to prison for manslaughter. Ogden City officials would quite thoughtfully find a way to cut the victims in for a share of the blame for the incident as a way of insulating themselves from liability for the actions of Officer Matt Jones, whose unnecessary pursuit led to the crash. 

Jones, who has involved in police surveillance of a “known gang member” at what was called a “known gang/drugs/weapons hangout,” gave pursuit when Bustos left the area – apparently on the assumption that his presence in the area created reasonable suspicion of criminal activity. A federal court ruling notes that Jones “was aware of the residential address of Mr. Bustos and could have waited at that address to arrest Mr. Bustos for any crimes he may have committed.” Thus no exigent circumstances existed to justify pursuing Bustos, which is why “the officers were advised and ordered by dispatch to disengage from the pursuit.”

It was later discovered Bustos was driving while intoxicated. Officer Jones was under the influence of an even deadlier narcotic – a cocktail of adrenaline and power lust – as he blew through five stop lights, ignoring an order to terminate the chase.  After being ordered to stop a second time, Jones turned off his siren and running lights and ceased pursuit. A few seconds later, Bustos collided with Nelson’s vehicle. 

Two years after the fatal car crash, Bustos pleaded guilty to two counts of vehicular manslaughter and is currently serving a potential thirty-year prison term. By the time Bustos was sent to prison, Ogden’s ruling political clique and the police force that serves it had already dealt with the problem posed by Officer Jones, who was, in effect, Bustos’s accomplice. 

Although Jones’s actions met the criteria for a charge of automobile homicide – which involves causing “the death of another person” while operating a vehicle “in a criminally negligent manner” – he was not prosecuted or disciplined for that offense. Instead, he was purged from the force because he had become an irritant to the mayor and police chief. 

On July 27, 2006, about eight months after the deaths of Nelson and Ellis, Jones was put on paid administrative leave after then-Mayor Matthew Godfrey complained about the officer’s involvement in a police protest over the city’s new pay policy. The new guidelines included a ticket quota as one of the 18 criteria for pay increases. Jones and other members of the Ogden Police Benefit Association – the local police union – had rented a moving van and decorated it with a banner reading: “Welcome to Ogden City, home of Godfrey’s ticket quota. If you disagree, call your city councilman.”

It’s important to understand that the police union was not taking a principled stand in opposition to the ticket quota; those officers certainly understood that extorting money at gunpoint was the most important element of their job. The officers involved in that protest were seeking an increase in pay and benefits without the imposition of performance criteria, and they were cynically exploiting public disgust over the ticket quota to that end.

Godfrey saw the van outside the Ogden Municipal Building. Noting that the person behind the wheel was a female who wasn’t a member of the Ogden PD, the Mayor lurked in the driveway long enough to see the driver picked up by a police officer he recognized on sight but whose name he didn’t know. He took down the license plate number of the officer’s car and called then-Chief Jon Grenier to demand that something be done. The Chief contacted a dispatcher and ran the license plate number. One hour later, a police lieutenant was knocking on Jones’s door to present him with notice that he was on administrative leave

It’s worth noting that Jones faced no discipline for his actions in precipitating a fatal car crash. The death of two Mundanes was scarcely worth notice. But criticizing the Mayor and confirming the existence of a ticket quota were firing offenses – and, sure enough, Jones’s paid vacation led to termination the following January.

When the internal investigation began, Jones insisted that he would not be treated fairly – and interesting assessment of the integrity of the department that employed him. After he was fired, Jones told the media that he was the victim of official retaliation, which is almost certainly the case. The Ogden PD replied to that criticism by publicizing the fact that Jones had failed a lie-detector test (a finding not admissible in court) concerning the theft of two wallets from “undocumented immigrants” who had been the subject of traffic stops. 

According to the department, the internal affairs investigation “demonstrated that Jones fit the description of the officer involved in the two thefts, that he was in the vicinity when the thefts occurred, that Jones had a pattern of targeting Hispanics, and that Jones had a pattern of manipulating and misrepresenting information about his activities and whereabouts on the job, thereby creating blocks of free time during which he was unaccountable to his employer.”

All of this may very well be true, but it doesn’t address some salient questions: Why didn’t Jones come under scrutiny until after he had offended the Mayor and Chief of Police by criticizing the ticket quota? Why didn’t the department investigate the possibility that Jones was profiling and shaking down Hispanics immediately after he had illegally pursued a Hispanic driver in an unnecessary car chase that led to the death of two innocent people?

Six months after Jones was fired by the Ogden PD, he was decertified by the Utah POST Council, which found that he had engaged in a “pattern of misconduct,” “sexual misconduct with a co-worker,” and general dishonesty.  In 2011, Jones and another former police officer named Daniel Kotter were found guilty of  trying to bribe a Utah Highway Patrol Officer who had arrested Jones for drunken driving

By this time, Ogden’s municipal government would have forgotten about Matt Jones – but for the fact that he figured prominently in lawsuits filed on behalf of the families of Jessica Nelson and Philemon Ellis, who had died because of Jones’s actions. 

The suit filed by Ellis’s family was quickly dismissed. The suit filed on behalf of Nelson’s daughter, who was 18 months old when her mother was killed, went to trial. The legal team defending the city persuaded the trial judge to exclude evidence regarding the reasons for Jones’s termination – that is, dishonesty, official misconduct, and criminal behavior that included preying on vulnerable Hispanics like Eddy Bustos. That evidence was of obvious and urgent relevance, but it was deemed inadmissible. 

Robert Sykes, the attorney representing Jessica Nelson’s family, filed a motion in limine prohibiting the City from trawling through the personal backgrounds of the victims. The trial judge responded by granting that motion – and then proceeding to ignore it as attorney Heather White, acting on behalf of the City of Odgen, fired a fusillade of greasy insinuations about the character and activities of both Jessica Nelson and Philemon Ellis. 

In her questioning of Theresa Nelson, Jessica’s mother, White insinuated that Jessica was a drug-addicted prostitute and that Ellis – a family friend – was among her clients. At one point White simply disregarded the order in limine outright and asked the grieving mother: “Did you know that [Ellis] had a criminal history dealing with prostitution?”

This prompted Sykes to object that “[Mr.] Ellis is dead, and his history has nothing to do with this, and [White is] trying to besmirch Jessica Nelson by using this improperly, and she knows it.” 

For what little it was worth, the trial judge upheld that objection, but White’s tactic had the desired effect: It placed the onus on the victims to explain why they were at an intersection at 3:00 a.m., rather than on the City of Ogden to defend the criminal actions of the disgraced police officer who had helped bring about their deaths. The jury played the expected role of upholding the city government’s claim that both Jones and the political junta that employed him were shielded by “sovereign immunity.”
“According to our laws and social values, prostitutes are criminals who should be punished, not rewarded with a verdict,” Sykes pointed out in a motion for a new trial. “There is a reasonable likelihood that the jury would have viewed the evidence in favor of Plaintiff’s case more favorably had [the City of Ogden] not planted the seed, without any basis, that Jessica and her passenger were involved in criminal activity” (which would have been more accurately described as consensual indulgence in vice, assuming any such activity occurred). 

The Utah Supreme Court agreed, ruling that Jessica Nelson’s “presence in the intersection was tragic and random. What she was doing in the intersection was irrelevant, what she had been doing that night was irrelevant, and any prior life history of either Jessica or Mr. Ellis was irrelevant. The questioning therefore … served only to prejudice the jury.” Attorney Heather White, the court observed, “surrendered, without resistance, to the impulse to win her case by bludgeoning the character of the dead.”

Those who belong to the political class assume that their natural and proper role is that of the accuser or the prosecutor, never the defendant. In the case of Nelson and Ellis, the Ogden political clique demanded that the long-dead defendants explain their actions, thereby inviting a credulous jury to make unwarranted and irrelevant inferences. 

This same mindset is at work in the Regime’s defense of drone strikes overseas in which dozens or hundreds of innocent people are killed – or in the notorious “Collateral Murder” video in which a US helicopter pilot who had just committed a war crime derisively blames the Iraqi victims for “bringing kids into a battle.” 

Both at home and abroad, the Regime’s armed emissaries are adept at the use of the “Texas Sharpshooter Fallacy” – essentially, shooting first and drawing a bull’s-eye around the bullet hole. This is how the people in charge of the “targeted killing program” can claim that drone strikes are a practically infallible method of killing militants: They simply redefine all “military-age” males (those at least 14 years of age) in a targeted zone as suspected “militants.”

A similar method is used by police who seek to justify patently indefensible shootings: The officer perceived a “threat” on the part of the poor schlep up was holding a garden hose, or a pair of underwear, or a cellphone, to kill whenever they consider themselves at risk, which is why pants-wetting cowardice is a job qualification, rather than a liability, for police “work.”
Heather White
In some police homicides – such as the deaths of Nelson and Ellis -- the claim of “officer safety” makes a poor fit. Thus the only suitable tactic is to do what Heather White did: Traduce the character of the dead victims in an attempt to convince the jury that they must have been guilty of something

Although White’s assault on the memory of Nelson and Ellis happened several years ago, the tactic she employed acquires new relevance in light of recent revelations regarding the Regime’s omnivorous surveillance program. 

The Regime and those who serve it have insisted that the NSA’s eavesdropping activities are benign because they “only” involve the collection of “metadata,” rather than content. Leaving aside the fact that this is a lie, the Regime’s collection of metadata is a totalitarian exercise. Through metadata analysis it is possible to extrapolate a detailed account of any individual’s daily life, his acquaintances, his habits, and his vulnerabilities

As Harvey Silverglate points out, each of us commits at least three acts each day that could be described as felonies by any reasonably ambitious prosecutor.  By using NSA-provided metadata to conduct a “pattern of life” analysis of a targeted individual, law enforcement agencies could probably contrive an excuse to arrest practically anybody at any time. This capacity will dramatically expand opportunities for official retaliation against Mundanes who seek redress for abuses committed by police – including family members of deceased victims. 

Bad as things are in this respect right now, it will get much worse, very soon.

Dum spiro, pugno!


dickm said...

This case and many other similar cases reveals the transition of this Country from individual sovereignty to government tyranny. The police, prosecutors and courts are not providing "justice" for the individual, they are enforcing the illegal acts of government agencies. Taxpayers/citizens must quit paying for this abuse of power and demand that violators and supervisors be fired.

willb said...

High speed pursuit makes for great TV but really
fucked-up reality.

These guys are all buck'n for an episode on Cops
while creating a deadly nuisance for the rest of us.

Recently here near Houston an innocent was killed
by two young women fleeing police after having
shoplifted from a nearby mall.

Who is really at fault? Reckless police policy or
the panic stricken suspects (who were minors.)
In either case, was it worth the life of the loving
Mother who was killed?
(Hint: these are rhetorical questions.)

willb said...

Oh, and by the way...

Interesting that I describe the victim above as a
"loving mother," but I don't have access to her "secret"
dossier as will the State's attny when this case comes
to civil trial.

Daniel Y. said...

Your title put a thought into my mind, just to contemplate. What if the state's job was to defend it's masters (citizens) when they are accused and prosecution could come only from private individuals who suffered loss. Why would such a reversal of roles be any problem? Of course, begging the question that the servant, the state, should have any such role at all. -- An intriguing thought.

Bob said...

I was going to refer to these slimeballs in policemen's customes as Pigs, except that it would be a horrible insult.

To the pigs, that is.

Another solid post, Will.

Keith said...

@ Bob,
Try getting one to do something useful like look for truffles ;^)

I started calling my best landrace sow, "Fine Swine"

which is totally unfair as she's a plump, sweet natured and highly productive individual... no human can make bacon like she can(and I wouldn't eat it if they tried!)

Calling our steroid enhanced fatties in blue, "thugs" is probably offensive too. It would take a terminally dumb private sector gangster to employ such narcissistically arrogant, trigger happy, cowardly, unreliable and ill disciplined bunch.

Keith said...


Many thanks for your insight on the likely use of spying dossiers as well poisoning/ ad hominem etc material in courts and the media.

Friends have already pointed out the potential for spying data being used to blackmail judges and defense lawyers (as though the prospect of state salaries and promotion to state judge in state monopoly court, weren't corrupting enough!).

It says little of a judge and the jurors, that they swallowed a combination of some of the most basic logical fallacies. State education has done its job well.

MoT said...

So I suppose, using Ogden logic, that prostitutes deserve to die without question no matter the hour or location. Especially if official vermin are involved in it.

Anonymous said...

'The officer perceived a “threat”'

I'm thinking "perceived" is actually "assumed" or "imagined".

Those guys are indoctrinated to assume that *everything* is a lethal threat. No sense loading them with the burden of rational thought. :/

Christopher said...

Off topic, but I'm really looking forward to your post about double jeopardy vis a vis the Zimmerman verdict.

Trayvon likes his skittles
And he got the best of George,
Until George used his rights
His rights to self-defense
And gun shots, gun shots from his gun
Yeah he carried like he could....

Christopher said...

PS: He was getting the best of him.

Where was the ref? Who was going to break this up?